United States v. Helton

32 F. App'x 707
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 6, 2002
DocketNo. 00-5221, 00-5343
StatusPublished
Cited by7 cases

This text of 32 F. App'x 707 (United States v. Helton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Helton, 32 F. App'x 707 (6th Cir. 2002).

Opinion

BATCHELDER, Circuit Judge.

Joe Douglas Helton appeals his conviction on charges of possession of cocaine with the intent to distribute and use of a firearm during and in relation to a drug trafficking offense. The defendant also appeals his sentence, arguing that the district court improperly sentenced him under United States Sentencing Guideline (U.S.S.G.) § 2A2.1 rather than U.S.S.G. § 2A2.2. The Government cross-appeals the sentence, claiming that the district court incorrectly applied the special offense characteristics of U.S.S.G. 2A2.1(b)(l). For the reasons that follow, we affirm the plaintiffs conviction on both counts, affirm in part and reverse in part, and remand this case for resentencing consistent with this opinion.

PROCEDURAL HISTORY

Joe Douglas Helton (“Helton”) was indicted in the Eastern District of Kentucky on one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count I); one count of use of a firearm in a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count II), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(l)(Count III). His co-defendant, Harold Dean McCarty (“McCarty”) was indicted on Counts I and II as well as on Count IV, also a charge of being a felon in possession of a firearm.

The district court granted the United States’s motion to sever the trials of the two defendants and a jury found Helton guilty on all three of the counts on which he was charged. The district court sentenced Helton to 131 months on Counts I and III, and 60 months on Count II, to run consecutively to the sentence on Counts I and III. In calculating the sentence, the court applied the attempted murder provision of U.S.S.G. § 2A2.1(a)(l), which requires a base offense level of 28. The court added three points under U.S.S.G. § 2A2.1(b)(l), finding that the victim suffered serious bodily injuries which did not rise to the level of permanent or life-threatening bodily injury. This determination raised Helton’s total offense level to 31. Because Helton had prior convictions, his criminal history category was II. As a result, his sentencing range was 121-151 months. The court chose 131 months. Further, the district court determined that since Helton was indicted only for use of a weapon under 18 U.S.C. § 924(c)(1)(A), not for discharge of a weapon under that section, his maximum sentence under Count II was 5 rather than 10 years.

Helton appeals his conviction, arguing that the district court erred in denying his separate motions for judgment of acquittal on Count I and on Count II. Helton also asserts that the district court erred in sentencing him by using the incorrect guideline range for Counts I and III. Helton contends that the court improperly used U.S.S.G. § 2A2.1; rather, it should have used U.S.S.G. § 2A2.2 because he did not have the requisite intent for attempted murder or for assault with the intent to commit murder. The United States cross-appeals on the theory that the district court erred in sentencing Helton based on [710]*710a 3-level adjustment under U.S.S.G. § 2A2.1(b)(l) rather than a 4-level adjustment because of the nature of the victim’s injuries.

STATEMENT OF FACTS

On June 2, 1999, Mildred Stanley Slush-er (“Stanley”) arrived at Helton’s residence, a double-wide trailer in Magoffin County, to find Helton and McCarty “partying” — using cocaine, and drinking beer. Helton offered some of the cocaine to Stanley, and she accepted. Stanley estimates that Helton and McCarty possessed approximately eight to ten grams of cocaine in rock form. She testified that the cocaine belonged to both Helton and McCarty and that they both prepared it for sale by measuring it into nineteen half-gram packages worth $50 each. Stanley testified that during the time that they were using cocaine and preparing it for sale, both Helton and McCarty loaded and unloaded a Colt .45 caliber automatic pistol.

The following day, Helton invited Molly Minix Shepherd (“Minix”) to join the “party,” offering her cocaine which she accepted and used. During this time, Minix witnessed Helton handling the .45 caliber pistol. According to Minix, Helton “jokingly” claimed that the pistol was his.

With four individuals using a limited cocaine supply, McCarty and Helton realized that they needed to restock their supply to cover the cost of the amount they had used. Both Stanley and Minix testified that Helton and McCarty discussed the situation, and Helton agreed to trade his 62-inch television for one-half ounce of cocaine and $400. McCarty, driven by Stanley, went off to arrange the deal, taking the nineteen packages of cocaine with him. Less than a mile from Helton’s house, McCarty told Stanley to stop the truck; Stanley watched McCarty hide the cocaine behind a traffic sign. Stanley then drove McCarty to meet the acquaintance with whom he hoped to arrange the television-for-cocaine deal. After the meeting. McCarty and Stanley returned to Helton’s trailer and, with the assistance of a neighbor, loaded Helton’s television into the truck. Both Helton and Minix were asleep. McCarty set off to make the trade, explaining that the round trip would take about three hours.

McCarty was actually gone for around 24 hours. During that period, Helton, Stanley and Minix began to suffer from cocaine withdrawal. Discovering that Stanley knew the hiding place of the cocaine, Helton directed her to retrieve it since, he claimed, he was entitled to one-half of it. Stanley testified that she and Minix walked to the hiding place and took five or six packs. Helton, Stanley, and Minix consumed at least five packages cocaine.

McCarty returned later that night in a rage, having gone to the hiding place and finding none of the nineteen packages of cocaine. (The whereabouts of the remainder of the cocaine is still a mystery.) McCarty accused Stanley of stealing it. Threatening with his gun and demanding to know where Stanley had put the rest of his cocaine, McCarty forced Stanley and Minix to sit to the floor of Helton’s trailer. He stood over them and shot Stanley in the shoulder with the .45 caliber pistol. The bullet went through her body, exiting above her buttocks, but did not kill her. He threatened to shoot Minix as well, but Helton stopped him.

McCarty and Helton then cleaned up the blood in Helton’s trailer, wrapped Stanley in a blanket, put her in the back of McCarty’s truck and discussed how they should kill her and dispose of her body. Stanley attempted to escape but failed.

[711]*711McCarty and Helton drove Stanley to the hiding place of the cocaine, and McCarty, threatening her with his gun, demanded that Stanley tell him where she had hidden the cocaine. When Stanley again told him that she had not taken it all, McCarty pointed his pistol at her and fired into the truck, just past her head. Stanley did not see McCarty threaten Helton during any of this period.

McCarty and Helton then drove to a strip mine where they tied cement blocks to Stanley’s body and threw her into a pond. McCarty and Helton burned all of the evidence linking them to Stanley and discussed ways of killing her if she did not drown.

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Bluebook (online)
32 F. App'x 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-helton-ca6-2002.